Wednesday, February 4, 2009

Making Sense Of The Perak Controversy

Before embarking on an analysis of the state of play in Perak, it would be of value to consider the objective facts:

two assemblymen signed undated resignation letters as a condition to their being nominated by their political party for a state election. For this, the party also gave them full support, financial and otherwise. They won their respective seats;

the undated resignation letters were submitted to the Speaker of the Legislative Assembly. The Perak Constitution allows members of the Assembly the option of resigning their membership “by writing under his hand addressed to the Speaker”;

the party opted to submit the resignations of the two assemblymen. It is not apparent what prompted this;

the Speaker has accepted the resignations and communicated the fact of the resignations to the Election Commission. The Speaker has taken the position and ruled for the purposes of the Assembly that the resignations have taken effect and by-elections be held. He will treat the assemblymen as no longer being members of the Assembly for the purposes of proceedings in the Assembly;

the two assemblymen dispute the validity of the resignation. They do not contend that the resignations letters were not under their hand. They contend that the resignations were procured through duress; and

the Election Commission has decided that the resignations are doubtful and as such not true resignations.

From the above, it could be said that the following questions arose when the controversy first erupted:

the legal value or validity of the resignations. There is no authoritative decision of the courts on this point. A 1982 decision of the then Federal Court (Datuk Ong Kee Hui) observed that such resignations could be viewed as being contrary to public policy in view of elections at both the State and Federal level being of individuals as opposed to political parties. A question of honoring the wishes of the electorate, that is the electing of the individual as opposed to the party, arises. The Federal Court did not decide on the point as the Member of Parliament concerned did not seek to invalidate the resignation nor had the Speaker been joined as a party. The point is as such open to argument; and

whether the resignation letters were procured under duress,

However, these questions have been overtaken by events, in particular the decision of the Speaker to accept the resignations and give effect to them. The Speaker may be wrong but until he is shown to be wrong through valid process – either in the Assembly (to the extent that such process is available) or through the courts – the Speakers decision must stand.

In this regard, the Election Commission is charged with the conduct of elections. It could be argued that in order to do so, the Election Commission must have the power to determine whether an Election is needed in the first place. Where State and Federal Elections are concerned, this is established by the dissolution of the Assemblies and Parliament respectively. However, where casual vacancies (through death, resignations or disqualifications) arise, the situation is more nuanced.

The Perak Constitution (Article 36(5)) provides that a casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy. Vacancies caused by death and disqualifications are easily established. Where the latter is concerned, the matter is decided by the Assembly itself, which in law is taken to have final say (save where there is a matter of legal interpretation).

In the ordinary course resignations are similarly uncomplicated; the Speaker receives the letter of resignation and communicates the fact to the Election Commission which establishes the vacancy based on the Speaker’s declaration. From this, it is apparent that the vacancy is established by reference to the position taken by the Speaker. This is consistent with the basic principle of parliamentary democracy that it is the Speaker that regulates the assembly.

The question that arises is therefore whether this process is derailed by a dispute as to the validity of the resignation. In my view, it should not be, and the Election Commission must act accordingly. I say this for two main reasons. First, the scheme explained above.

Secondly, it is not for the Election Commission to embark on a fact-finding or adjudicative process as, amongst other things, it does not have the power to do so. In denying the position the Speaker has taken, the Election Commission is in effect asserting that that the Speaker is wrong. The Election Commission cannot do so. If there is a question as to the correctness of the Speaker’s position, then it must be challenged through proper channels.

Seen from this perspective, this unprecedented and very curious action of the Election Commission regrettably raises questions as to its motives. It must be taken to appreciate the precarious position it has left Perak in, one which looked upon objectively appears to have been made more accommodating to the machinations of the Barisan Nasional. I note that by-elections would be inconvenient for UMNO which is scheduled to have its assembly in March. It is as such open to question as to whether the Election Commission has conducted itself in the independent manner the Federal Constitution requires of it.

Where this leaves the Perak Government is an open question. It could seek a ruling of the Court as to the correctness of the decision made by the Election Commission and an order to compel the latter to conduct the by-election. This would be a time-consuming affair and occasion a delay that can only work against the interests of the State. The razor thin margin is undermining of stability and it is more probable than not the attention of those who make up the State government would be focused more on preserving their government than the affairs of the State.

The Election Commission’s stance and the underlying events would afford sufficient cause for the Menteri Besar to request that His Highness the Sultan dissolve the assembly and call for fresh elections. All things considered, this may be the best way to protect the interests of Perak. In these difficult times, governments should be focused on what needs to be done rather than politics.

24 comments:

Anonymous
said...

Calling for a state election would be the leadership thing to do. The problem is the political implication of a Sarawak state election is called IMMEDIATLY after a Perak election? PR could be disadvantaged by too many election.

This is no less battle royale, street fighting politically and the smart thing to do NOT to avoid a fight even if it is messy.

You mentioned you did not understand why the EC did it. Its about money - the two assemblymen are broke to fight a case they may NOT win as you point out here. UMNO cannot be seen to fund these two guys OR the backlash would be impossible NOT to mention the attempt to put a stop to money politic.

The EC did this so the two assemblymen won't just run because they won't fight the case on their own indicating that a higher power is coordinating this which can only be Najib logically.

Malik, I am wondering as to who should challenge the speaker's decision, would it be the two ADUNs, if so, can the EC decide on a by election before the case is decided upon? And declare teh result of the by election valid/not valid based on the court findings, which may come after 60 days given appeal and everything else.

I think the EC chairman's statement inviting legal challenge fromt eh state of PErak is a soudn decision, because the state has more money to embark on this complex legal matter involving constitutional issues. I believe the state Government MUST, start the legal challenge so that the law can be further clarified on the matter for the sake of the people.

In the meantime we hold on to the by election and save a few millions.

I agree that the EC's decision may look like they are overstepping their boundaries but I think the legal advice is for them to invite a court process so that they themselves can better understand the limit and scope of their duties

and you have to admit that the 1982 federal court decision does make it clear that reps must not face the threat of removal from their parties, that is against public policy... of course the exact detail of this case is different and can be used to exclude that precedent but I believe that it is still a very strong and soudn guidance to work with

Najib has had more than 30 years in which to acquire & accumulate political clout within Umno - plus access to a virtually limitlesss warchest, further facilitated by the fact of his now being finance minister. The trail of dead frogs leads straight to a desperate PM-wannabe.

I find it amazingly efficient that the AG would be able to give an opinion on either a bank holiday or in the few hours early Tuesday before the EC's PC. Especially, since we are talking about the same AG who accepted Singapore's ICJ challenge over Pulau Batu Puteh and got trounced at our expense.

I am afraid, the main issue here is beyond legal opinions, which, as you rightly said, are subjective. How to deal with federal institutions, like the EC and the AG, who behave like party coalition members?

BTW, we'll see how penny-wise and pound-foolish this "save a few millions" comment of yours will become when the state assembly is dissolved and we get, not 2, but 59 by-elections. All courtesy of the EC's subjective decision.

The Speaker may be wrong but until he is shown to bewrong through valid process – either in the Assembly(to the extent that such process is available) orthrough the courts – the Speakers decision must stand.

Malik Imtiaz Sarwar said this is because the power to dissolve the state assembly is in the hands of the Ruler of the state and in this case the Sultan, not the Menteri Besar.

He said the Perak Constitution clearly states that dissolving the state assembly is the prerogative of the Sultan and nobody else has the power to dissolve the assembly.

"It's like the Prime Minister announcing the dissolution of Parliament before obtaining the consent of the Yang di-Pertuan Agong. Likewise, in this case, the Menteri Besar must first obtain the consent from the Ruler before making the announcement," he told Bernama.

Full text at:http://www.bernama.com/bernama/v5/news_lite.php?id=387678

Big difference between "may be wrong" and "has erred". Perhaps you may want to send some choice words to Bernama.

I made the point in my posting at a time when the BN had not as yet announced the defections.

The statement in BERNAMA was maede when I was informed that the MB had announced the dissolution of the Assembly in advance of the Sultan decreeing it. The constitution is clear, only the Sultan has the power to dissolve the assembly.

I note however that it is only BERNAMA that carried the announcement by the MB.

You have put forward the debate & discussed what the logical norm should be...yes the most "Honourable thing to do". But this is UMNO & PM wannabe (or rather the defacto PM wannabe)!

Sad to see this great nation Malaysia administered by the British Tuans, then handed over to the Malaysian TUANS under Bapa Malaysia Tunku Abdul Rahman Putra & his Malaysian cabinet of TRUE TUANS managing the system of Wesminster style Democracy & with the Rule of Law in 1957, getting "Hijacked & Betrayed" by the "Elite UMNO Ketetuanan BEGGARS" in 1969.

For 40 years, instead if teaching their own kind to "Learn to catch their own FISH", they took the easy way out to maintain their "False" sense of Security & Power by using the "Ketetuanan (BEGGAR)" policy - you vote UMNO, we give you "Fish" & the rot set in to what it is today & the beat goes on....!

For the others, "Either you are with us.....or else....you will be "MIA or Eliminated", period !

PM wannabe & his Goons must have used pressure on DYMM with the issue of "rightful Royal Succession", so they got their wish this time!

This great nation, its assets & its Anak Bangsa Malaysia have been abused for the last 40 years by these "Moronic Idiots & their Goons" through "Gutter Politics" & the "Law of the Jungle".

Through "Devine" intervention, UMNO, its Leaders & their Lapdogs are now "Destroying" each other with their "Power, Greed & Henious Crimes".